Council gives direction on elevated pools issue

January 15, 2014

Four days after denying an appeal to a developer regarding the continued construction of five accessory elevated swimming pool structures within the property of new single-family homes on Palermo Circle on Fort Myers Beach, Town officials directed its attorneys to provide options for tweaking code language and set a second public hearing for a related draft ordinance.

During a special meeting on Friday, the Fort Myers Beach Town Council asked attorneys Marilyn Miller and Derek Rooney and Town staff to delineate sections of the Town Land Development Code pertaining to the issue. The findings will be revealed at the Council workshop for discussion on Feb. 3.

"I think the thing to do is come back (and tell us) what sections of this code need to be tightened," said Beach Mayor Alan Mandel. "I feel what we have is right the way it is, but I think we acknowledge there might be something that needs a tweak here and there."

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BOB PETCHERView corridor issues are in question with five accessory elevated swimming pool structures within the property of new single-family homes being built on Palermo Circle on Fort Myers Beach.

Council unanimously approved to schedule a second public hearing for draft ordinance 13-10 on Tuesday, Jan. 21, during the Council's 6:30 p.m. meeting. That hearing was previously tabled.

Many Beach residents have expressed their displeasure in changing the code, yet have argued about view corridor in these instances. While they believe code changes will result in legal action against the Town, Rooney stated the opposite.

"By amending the code, you cut off any future interpretations," he said. "If you don't amend and there is a declaratory judgement filed that challenges the interpretation of the code itself (and is successful), the interpretation is no longer limited to those six permits but Town-wide."

Questions have arisen to whether these elevated pools should have to comply with the principal structure setback of 25 feet or if a 5-foot accessory structure setback applies. Town staff determined that, as long as pool and deck are not attached to principal structure, an elevated pool should be allowed a 5-foot setback from a canal. It was also determined that an enclosure (fence, railing or wall) would be allowed for a minimum safety code requirement.

According to an email from Town Community Development Director Walter Fluegel to Town Building Safety Services Coordinator Ken Miller on Nov. 19, 2013, Fluegel writes that developer Joe Orlandini stated to Council members that he submitted building permits involving elevated pools he constructed on Palermo Street "depicting them as being attached to the principal structure." If attached, the principal setback would have to be 25 feet, not the short distance to the canal as constructed.

Establishing view corridor language may be among the proposed changes or additions to the code. Vice Mayor Joe Kosinski pointed out that a view corridor provision is missing in the current LDC.

"It was mentioned several times that these structures are blocking the view," he said. "It's obvious that the view corridor is sacred. It adds to the value of the property, and it takes away from the value of the property if it is lost."

Kosinski recommends the Town Local Planning Agency should also be assigned to do research and discussion on the subject and create policy options. That task may take place during the LPA's Feb. 11 morning meeting.

Height limitations and language about landscaping could also be addressed.

"If you feel that the Town would be in a better legal position to, for example, put a height limitation on certain types of accessory structures, you can task the LPA," said attorney Miller. "You have no height limitations on garages or totally detached accessory structures. You could have a three-story garage 10 feet from the sea wall with these provisions."

Councilman Dan Andre believes the code language could be "cleaned up" as well, but would like the accessory language to remain as it is.

"I think it is very clear to everybody and me that there is no ambiguity in the code about accessory structures," he said. "You can set yourself up for further litigation."

Building work continues at 221 Palermo, 263 Palermo, 301 Palermo, 455 Palermo and 551 Palermo, but work on elevated pools and accessory structures within those properties has been halted. The appeal was disallowed by a narrow 3-2 count.

Back on Oct. 26, 2013, Council adopted a moratorium resolution to declare "zoning in progress" and to preclude issuing building permits for elevated pools until it adopted regulations for such pools. Last week, Council unanimously approved to lift part of the moratorium to allow the construction of ground level pools that have a 25-foot setback or five feet from a seawall if they are built no higher than 42 inches of natural grade.

The building permit requests for elevated pools and related accessory structures have been said to be made due to FEMA-imposed base flood elevation requirements that range from 10 to 13 feet above adjacent grade in that particular neighborhood. Attorney Beverly Grady, who represents Orlandini, has claimed that certain properties should not be subject to the resolution in question due to the processes undertaken by Council and Town staff.

"We respectively submit the Resolution 13-26 is null and void and this process today is null and void," she said Jan. 6. "Those applications were filed months prior to Resolution 13-26 and were found to be consistent with the land development code by (Town) staff and an attorney. Your obligation is to hold and respect your code as it exists today. The Town now has lawfully refused to process and complete those permit applications."

At the beginning of the special meeting, Beach residents pleaded with Council members to disallow

an interpretation finding and an independent investigation review from Constangy Brooks & Smith, an independent law firm that concluded that the Town code "permits elevated, non-roofed swimming pools and decks to be placed up to but not closer than five feet from a seawalled canal or seawalled natural body of water provided that these non-roofed accessory structures are not enclosed (except by a fence or screened enclosure) and are not structurally part of the principal building." They also charged that Town staff made a "mistake" in issuing the permits.

"Staff examined the code and made a decision the way the code was written and moved forward with that decision," said Town Manager Terry Stewart. "Staff accepts responsibility for that."

Prior action was not meant to be hidden or defended.

"The record clearly shows that staff recognized the community was uncomfortable with this matter, and that we should take steps to resolve it," said Stewart. "Whatever staff has done in a way of defending its decision is not to say that that's what should happen from now on in the future. But when people are attacking the decision we've made, we try to help them understand why that decision was made."

Stewart stated that any ambiguity within code language will now involve Council attention going forward.

Mandel confirmed that Council "is in a difficult spot" since permits were already issued and construction begun. He also said the relationship between Council and Town staff also needs to be addressed.

"We need to be in front of and take charge of what it is that we are going to review here," he said.

Council apologizes to alleged "rumor-maker"

Council unanimously approved an apology that Town officials formally apologize to Beach resident and LPA member Jane Plummer for releasing her name to the press.

The reason for the apology was connected to an email sent by Town Community Development Director Walter Fluegel to NBC-2 news station about information implicating her to spreading rumors that were potentially damaging to his reputation and town government operations related to alleged impropriety regarding the Town's controversial elevated pool policy.

Fluegel stated in a Nov. 20 memorandum to Stewart and Town Attorney Marilyn Miller that the rumor he believes was circulating involved an allegation that he had been "bribed" by developer Joe Orlandini in regards to the issue of elevated pools on Palermo Circle on the Beach. In the same memo, Fluegel states Plummer is "one of the sources I have heard of as being referenced in making allegations of impropriety against me." Orlandini has emphatically denied any such bribe allegation.

Councilman Dan Andre read from the independent investigation review from Constangy Brooks & Smith and stated "the investigation is inconclusive as to whether or not Jane Plummer made allegations or spread rumors."

Plummer has called the passing of her name to the press as a violation of the public trust. She is seeking consequences for that action and has demanded an apology since the incident.

"At a minimum, I have deserved an apology as public as these false accusations have been received," she said.